Written by Ranjot Brar
JD Candidate 2025 | UCalgary Law

Competition (antitrust) law has been thrust into the forefront of tech regulation today. Recent enforcement of competition has focused on big tech and addressing the anti-competitive acts of large digital platforms. The dominance of tech giants such as Apple and Google is evident, and abuse of power is not always apparent in these data-driven markets. While the EU and US have stepped up enforcement of competition law in the digital era, Canada continues to act slowly.
 
Case comparisons between the US, Canada and the EU illustrate that competition law enforcement in Canada lacks teeth. The European Commission has charged Google on three occasions for abuse of dominance in breach of competition laws, and the resulting fines have been in the billions of dollars. In 2017, the European Commission fined Google €2.42 billion for prioritizing its comparison shopping service to the detriment of competitors following a multi-year investigation.[1] In 2018, the Commission found that Google had abused its dominant position by requiring manufacturers to pre-install Google Search and Chrome onto Android devices, and the result was a record-breaking €4.3 billion fine for stifling competitors and innovation.[2]
 
In 2011, The FTC shut down the US’ initial investigation for abuse of dominance as a search engine despite key staff members raising concerns about anti-competitive behaviour that harmed consumers and competitors in the search engine and advertising market.[3] Google is currently in the midst of the most significant antitrust trial since the 1990s Microsoft litigation in the US. They are accused of making important deals, specifically with Apple, that assisted them in maintaining dominance as a search engine while blocking competitors from gaining market share.[4] A verdict in this landmark case is expected in early 2024, and the decision will reshape how Google and antitrust enforcement operate in the US.
 
Meanwhile, Canada reviewed similar anti-competitive behaviours by Google. It closed the investigation in 2016 for lack of sufficient evidence of anti-competitive acts and lessening competition in the market.[5] A similar investigation was commenced by the Competition Bureau in 2021 but has yet to find an abuse of dominance by Google.[6] Key Canadian allies are clearly tightening antitrust enforcement of large digital platforms while Canada continues to watch from the sidelines. Whether from a lack of funding to the Competition Bureau or problematic provisions in the Competition Act[7], Canadian competition policy requires substantial reform.
 
 


[1] European Commission, “Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service” (27 June 2017), online: <ec.europa.eu/commission/presscorner/detail/en/IP_17_1784>.

[2] Tom Warren, “Google fined a record $5 billion by the EU for Android antitrust violations” (18 July 2018), online: <theverge.com/2018/7/18/17580694/google-android-eu-fine-antitrust>.

[3] Brody Mullins, Rolfe Winkler & Brent Kendall, “Inside the U.S. Antitrust Probe of Google” (19 March 2015), online: <wsj.com/articles/inside-the-u-s-antitrust-probe-of-google-1426793274?ns=prod/accounts-wsj>.

[4] Adi Robertson, “The antitrust trial against Google Search starts today – here’s what to expect” (12 September 2023), online: <theverge.com/2023/9/12/23868141/google-search-antitrust-trial-what-to-know>.

[5] Competition Bureau Canada, “Investigation into alleged anti-competitive conduct by Google” (19 April 2016), online: <ised-isde.canada.ca/site/competition-bureau-canada/en/how-we-foster-competition/education-and-outreach/position-statements/investigation-alleged-anti-competitive-conduct-google>.

[6] Competition Bureau Canada, “Competition Bureau obtains court order to advance an investigation of Google” (22 October 2021), online: <canada.ca/en/competition-bureau/news/2021/10/competition-bureau-obtains-court-order-to-advance-an-investigation-of-google.html>.

[7] Competition Act, RSC 1985, c C-34, s 1.1.

Written by Krystian Sekowski
JD Candidate 2025 | UCalgary Law

The recent turbulence at OpenAI sent shockwaves throughout the tech landscape, unveiling a story of corporate upheaval, power struggles, and the intersection of ethics, profit motives, and governance. The drama began when Sam Altman, a central figure within OpenAI and pivotal to its direction, was abruptly ousted from his role as CEO by the company's nonprofit board of directors. Altman's alleged lack of transparency and honesty was the catalyst for this decision, an accusation tantamount to exile in the corporate world.
 
The sudden dismissal of Altman, a revered figure in the tech community, rattled not just the internal dynamics of OpenAI but also triggered a chain reaction of resignations and concerns among investors, notably Microsoft, a major stakeholder. The resultant outcry from within the organization and the influential pressure from external stakeholders led to a swift series of negotiations and mounting tension upon the board of directors.
 
The high-stakes nature of the situation became apparent as Altman, supported fervently by Microsoft and amidst threats of mass resignations from almost the entire OpenAI workforce, ultimately regained his CEO position. However, it was not without conditions—Altman, alongside Greg Brockman, OpenAI's president, also ousted from the board, did not immediately reclaim their board seats. Instead, the board was now chaired by Bret Taylor, formerly a co-CEO at Salesforce, joined by eminent personalities such as Larry Summers and Adam D'Angelo.
 
During a Friday video conference, the crisis erupted unceremoniously when the board abruptly dismissed Altman, followed by a cryptic announcement on OpenAI's website, citing discrepancies in Altman's communication with the board. This sparked outrage and a wave of resignations, both internally and from investors, including the influential Microsoft. Efforts to quell the unrest eventually led to Altman's reinstatement, albeit under the shadow of an internal investigation into the reasons for his initial dismissal.
 
Apart from the internal turmoil and potential fallout from resignations, OpenAI faced the jeopardy of losing critical strategic discussions, notably a substantial sale that valued the company at $80 billion. This mounting pressure eventually forced the board's hand, resulting in Altman and Brockman regaining their roles, signifying a hard-earned victory for the embattled AI powerhouse.
 
The saga at OpenAI unveiled the intricate interplay between corporate governance, investor influence, employee morale, and the complexities inherent in the AI landscape and corporate world. It underscored the challenges organizations face in balancing profit motives with altruistic goals, which Effective Altruism principles aim to reconcile but often find challenging in practice.
 
An essential takeaway from this tumultuous episode was the need for a clear delineation between board responsibilities and management. The blurred lines in OpenAI, where Altman's influence seemed to transcend traditional board authority, highlighted a significant governance concern: a board should not merely serve to support management but also assert independent oversight and decision-making.
 
Furthermore, the unified expression of no confidence in the board by OpenAI's workforce underscored the potential impact of employee sentiments on significant leadership decisions. This highlighted the rising influence of employee activism in shaping corporate outcomes, prompting reflection on its implications across industries.
 
While the saga unfolded within the tech industry, its lessons extend far beyond, serving as a valuable guide for governance structures, decision-making processes, and leadership responsibilities across diverse industries. Should a board of directors decide to remove someone as prominent as the CEO, they ought to be more prudent by privately negotiating the departure with the executive, preserving their credibility and reputation. Springing the news of termination on anyone moments before the public announcement stands out as a significant misstep, marking a crucial lesson for all future boards: the importance of handling such matters discreetly and with due respect. Boards of directors ought to also hold a finger on the pulse and know the attitudes of critical employees and investors before making such drastic moves.
 
In conclusion, the OpenAI saga laid bare the complexities inherent in navigating governance, ethical dilemmas, and the high-stakes dynamics of the technology sector. It serves as a compelling narrative, offering multifaceted lessons applicable within the AI domain and across all industries.
 
Sources:
 
Perrigo, B. (2023, November 22). How Sam Altman Returned to OpenAI: A Timeline. TIME. Retrieved from https://time.com/6338789/sam-altman-openai-return-timeline/
 
Peregrine, M. (2023, November 27). Leadership lessons from OpenAI's wild week. Forbes. https://www.forbes.com/sites/michaelperegrine/2023/11/27/leadership-lessons-from-openais-wild-week/?sh=46f1241f7a13
 

Written by Kyle Murdy
JD Candidate 2025 | UCalgary Law

As a start-up company grows in size, it will invariably need to add employees to support this growth. When hiring employees, managers are often thinking about the work the employee will be doing, their fit within the company, and the impact of this employee on the company's budget. Conversely, the employee will often be most concerned with their compensation, benefits, as well as their job description. Needless to say these are all valuable considerations; however, both companies and employees often neglect to consider some important provisions should the working relationship cease to exist. Below are a few of these, and some notes to consider.

Termination:

One of the key factors in the long-term success of start-up companies is their ability to limit their costs when terminating an employee who has not worked out. Consequently, it is important for this to be considered prior to the beginning of the working relationship. The first thing to note is that an employment agreement should detail that an employee may be terminated at the discretion of the company. Notice periods are another point of interest, as these are prescribed both by statute (Employment Standards Code) and by the common law. The common law should be on the forefront of entrepreneurs minds, as awards are much higher than minimums prescribed by law. As such, explicit provisions in the employment agreement will aid in removing discretion from the courts. It must be noted however, that it is not possible to contract out of the minimum provisions provided by statutes.

Non-Competition Provisions:

In the context of start-up companies, non-competition provisions function to prevent former employees from working for competitors. Due to restrictions, these are often unenforceable in Canada due to the common law protection of an individual's ability to make a living. As a result, the best course of action is to explain the rationale behind the non-compete clause, as well as to narrow the scope of the provision - both geographically and temporally - to aid in the court finding it to be acceptable.

Intellectual Property Ownership:

At law, there is a presumption that a patentable invention will be the property of the employee, unless it can be rebutted by the company demonstrating that:

a) there is a contractual provisions stating otherwise;
b) the employee has a duty to the company due to their seniority - provided the invention relates to the business of the company; and
c) the employee was employed specifically for the purpose of inventing.

For things that are subject to copyright law rather than patents such as software, creations are presumed to belong to the employer as long as they were produced during the course of employment. As a result of these two presumptions, it is wise for start-up employment contracts to provide that employees will assign any patents they may secure while employed, along with broadening the scope of ‘the course of employment’ to allow for the allocation of copyrightable material to the company.

Written by Colton Manton
JD Candidate 2025 | UCalgary Law

Occasionally, start-up companies are lucky enough to benefit from a great idea, founders with previous business experience, or a base of customers right out of the gate. One thing that is not often part of that list is an amount of capital that is more than sufficient to meet the early needs of the company. There is a limit to the funds the founders (or their Uncle Jim) can contribute to the company before any kind of outside investment, and there are many costs associated with incorporating, hiring the first employees, and developing intellectual property. Start-ups are generally not incredibly keen on adding hefty legal bills to that list. What follows are five ways start-up companies can reduce their legal bills and risks at the early stages of their journey.

1 - Use a Free Legal Clinic

Legal clinics are an excellent resource for start-up companies and small businesses when money is tight. There are often some very bright and eager students ready to help. In the case of our Business Venture Clinic, we work with supervisor lawyers to help ensure we are providing a quality work product.
On the flip side, it is essential to note that the students volunteering at legal clinics are not lawyers, and some risks are associated with receiving work from them; students don’t have practice insurance like lawyers do, and they (most likely) can’t be sued in the unlikely event that something goes wrong. They don’t have all the training and knowledge of a practicing lawyer yet. Obtaining the services of a free legal clinic is a business decision, and the pros and cons of saving on legal fees and obtaining work from a student should be compared for each different legal task at hand.

2 – Find a Law Firm that will be Flexible or Creative with Payment Options

Occasionally, a law firm will allow a start-up company to defer the payment of their legal fees until they receive their first round of financing. In other cases, law firms have accepted an equity stake in a company they advise in lieu of payment. You might want to consider one of these payment options, depending on your situation.

3 – Arbitration

If they haven’t brought it up with you already, consider discussing arbitration clauses with your lawyer. Arbitration can be faster, more efficient, and less expensive than the traditional court system. In addition, if the subject matter of the potential dispute is sensitive or confidential, arbitration can help keep that information private.

4 – Put Everything in Writing

Brand new start-ups often conduct themselves in informal meetings where agreements and decisions are made orally. Employment agreements, investments from family, and decisions about who is on the board of directors have often been the subject of litigation. You don’t want to have any ambiguity arising from oral agreements where different people have different interpretations of what was decided.

5 - Distinguish Between Important and Less Important Issues and Considerations

A lawyer typically wants to bill for as much work as they can. They also usually want to ensure that every bit of risk for a company they are advising is considered and allocated for. However, start-ups are not like large oil and gas companies with millions of dollars to spend on legal bills; they can’t pay to ensure that ten lawyers dot every “i” and cross every “t” on their contracts. Generally, the most important issues or risks in a contract or business plan should be considered and accounted for, but you may be unable to cover everything; that is just part of operating within a smaller budget. A good lawyer representing a start-up company will make some judgement calls about the most efficient ways to reduce risk for the start-up while not billing them for frivolous tasks; make sure you have one of those.